Citation Nr: 1308743	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  09-49 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Denver, Colorado



THE ISSUE

Entitlement to service connection for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs



ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1961 to September 1965.

This appeal to the Board of Veterans Appeals (Board) arose from a December 2008 rating decision in which the RO denied, inter alia, service connection for bilateral hearing loss.  In May 2009, the Veteran filed a notice of disagreement (NOD).  The RO issued a statement of the case (SOC) in November 2009.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2011 and the RO issued an April 2012 supplemental SOC (SSOC).

In August 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), for additional development and consideration.  In January 2013, the AMC issued a supplemental statement of the case (SSOC) reflecting continued denial of the claim and returned the claims file to the Board for further appellate review.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished.

2.  The Board accepts the Veteran's assertions of noise exposure in service as credible and consistent with the circumstances of his service.

3.  Although the Veteran currently has hearing loss in each ear to an extent recognized as a disability for VA purposes, there is no credible, persuasive evidence of actual hearing loss or diminished hearing for many years after service, and the most persuasive opinion evidence to address the question of whether there exists a medical nexus between current hearing loss disability and in-service noise exposure weighs against the claim.  



CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1101,1110,1111, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.307,3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. 
§ 3.159(b) (1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b) (1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

In this appeal, a July 2008 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the initial claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  Post rating, a September 2012 letter from the AMC reiterated the required elements of notice.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent evidence associated with the claims file consists of service records, VA treatment records, one private audiogram submitted by the Veteran, various statements provided by the Veteran, and the report of a November 2008 VA examination accompanied by a November 2012 addendum opinion. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the paperless claims processing system revealed additional medical evidence that has been carefully reviewed by the Board.  Also of record and considered in connection with the appeal are various statements by the Veteran and by his representative, on his behalf.  The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required.  

Although the Veteran did forward an undated private hearing test (without any identification of the evaluator's identity) to VA, he has not otherwise identified any pertinent outstanding private records despite VA's requests to do so in July 2008 and September 2012 letters.

The Board further notes that this claim was remanded in August 2012 for the RO to assist the Veteran with development of his claim, to include the collection of additional VA treatment records, and to obtain a clarifying VA medical opinion.  Although the resulting medical opinion does not, as requested in the Board's August 2012 Remand, specifically discuss the relevance of an October 1963 audiogram, it does provide a sufficiently reasoned medical opinion and reflect that the examiner appropriately converted in-service audiometric findings to current standards.  All requested development was substantially (italics added for emphasis) accomplished on remand, so there was compliance with these remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). 

As mentioned, on remand, the AMC obtained a medical opinion clarifying the results of a November 2008 VA audiology examination.  The Board finds that such VA examination and its accompanying opinions are adequate to decide the issue.  As noted, the initial examination was predicated on interviews with the Veteran, review of the record, and physical examination; the addendum was based on additional review of the record.  The opinions proffered are based on consideration the pertinent evidence of record and supported by thorough rationale, relying on and citing to the records reviewed.  

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537,  543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549   (Fed. Cir. 1998).

II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

If a chronic disease becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  


With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

Although, as noted in VA's Adjudication Procedure Manual (M21-1MR III.iv.4.B.12.a), "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)," there is no evidence establishing that that the Veteran had any hearing disability-much less, hearing loss both to an extent recognized as a disability, and to a compensable degree- within one (1) year of separation from service.  However, as a chronic disease, sensorineural hearing loss may be subject to service connection based upon continuity of symptomatology .  See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).


The Veteran underwent audiometric testing on  enlistment examination in April 1961.  The enlistment examination indicates that whispered voice testing revealed  normal, 15/15, hearing-although the Veterans Health Administration (VHA) Handbook for Audiology indicates that the 'whispered voice' test is now considered an inadequate measure of hearing as it may not rule out mild hearing loss. 

There are no audiometric readings under the April 1961 audiometer chart portion of the enlistment examination report, but a separate "automatic audiometer," in graph format, is attached to the report.  On the following page, the Board has depicted the numerical results from the graph.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting that the Board may interpret results from an audiometric graph).  

Prior to November 1967, service departments used American Standards Association (ASA) units to record pure tone sensitivity thresholds and VA currently uses the International Standards Organization (ISO)-American National Standards Institute  (ANSI) units; therefore, the table below shows the converted (ASA to ISO (ANSI) measurements).  Converting to ISO units requires that specific amounts be added to recorded ASA audiological results: 15 at 500 Hz, 10 at 1000 Hz; 10 at 2000 Hz; 10 at 3000 Hz; and 5 at 4000 Hz.  

As such, on enlistment examination, the recorded pure tone thresholds, in decibels, were as follows:

Hertz
500 
1000
2000
3000
4000
Right Ear
15
10
0
0
5
Left Ear
15
10
10
0
0

A periodic evaluation in October 1963 revealed the following (as converted from ASA to ANSI) pure tone thresholds:

Hertz
500 
1000
2000
3000
4000
Right Ear
30
25
25
n/a
n/a
Left Ear
30
25
25
n/a
n/a

As noted in the 2012 remand, these measured pure tone thresholds seem to reflect abnormal hearing.  The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

At the time of the Veteran's separation from service in September 1965, his pure tone thresholds were measured as follows (as converted from ASA to ANSI):

Hertz
500 
1000
2000
3000
4000
Right Ear
10
10
5
5
10
Left Ear
10
5
5
5
5

The service records reflect no complaints of, or treatment for, hearing loss.  He self-reported "ear, nose, or throat trouble" (italics added for emphasis) at the time of his separation, but the "physician's summary and elaboration of all pertinent data" section of the self report notes no complaints pertinent to his hearing and states that the Veteran "denie[d] all other pertinent medical... history."  Although the Veteran's DD-214 does reflect that he served as a ballistics specialist and his service personnel records verify that he served around aircraft, his service records do not otherwise note any specific acoustic trauma or noise exposure.

After service, there is no documented evidence of any hearing loss, or complaint of diminished hearing loss, until 2004.  A June 2004 VA treatment note reflects that the Veteran's hearing was evaluated and revealed "sloping to a moderately severe loss [at] 1500 Hz through 8000 Hz bilaterally."  In July 2004, a diagnosis of sensorineural hearing loss was added to his "problem list."  Subsequent records reflect continued observation of his diagnosis of sensorineural hearing loss as well as treatment with hearing aids.

In July 2008, the Veteran filed a claim of entitlement to service connection for hearing loss.  He stated that, although he had protective hearing gear in service, he did not always wear it because sometimes "time was of the essence and normal precautions as to noise was to be ignored."  He wrote that he experienced occasional hearing loss, for short periods of time, during service and, after discharge, "a gradual loss of hearing."  


Audiometric testing on March 2006 VA audiology evaluation revealed the following pure tone thresholds, in decibels.

Hertz
500 
1000
2000
3000
4000
Right Ear
40
40
65
60
70
Left Ear
45
65
65
70
90

He had speech recognition (Maryland CNC) of 80 percent on the right and 72 percent on the left.  The evaluating audiologist diagnosed bilateral mild sloping to severe hearing loss with profound loss in the left ear.

In September 2008, the Veteran wrote to VA, again asserting that he did not have consistent hearing protection while he was on active duty.  He reported frequently servicing incoming flights.

The Veteran was afforded a VA audiology examination in November 2008.  The examiner noted that he had reviewed the claims file and examined the Veteran.  The examiner reported that the Veteran said he had in-service noise exposure from B52 bombers and generators as well as post-service recreational noise exposure from hunting and saws.  Audiometric testing revealed the following pure tone thresholds, in decibels:

Hertz
500 
1000
2000
3000
4000
Right Ear
35
50
55
55
65
Left Ear
35
55
50
70
95

He had speech recognition (Maryland CNC) of 92 percent on the right and 80 percent on the left.  The examiner diagnosed mild to profound sensorineural hearing loss, but opined that it was less likely than not that any hearing loss was caused by active duty service since the Veteran's hearing was measured as normal at the time of separation.  However, the examiner did not expressly indicate that he had converted any ASA standard units to ANSI units.

In December 2009, the Veteran forwarded a private audiogram (consisting of handwritten results on a pre-printed form) to VA.  The audiogram is undated, but a copyright date in the lower left corner reflects that the form was created in 2003.  Although the audiogram is not signed by any health care professional, a handwritten note on the audiogram reflects diagnosis of bilateral sensorineural hearing loss.  The audiogram reflects that testing revealed the following pure tone thresholds, in decibels:

Hertz
500 
1000
2000
3000
4000
Right Ear
40
50
60
55
70
Left Ear
40
60
60
70
100

In a July 2012 statement, the Veteran wrote that, when servicing airplanes, he "stayed in a shack on the runway."

As noted above, the Board remanded the Veteran's claim in August 2012.  The Board specifically directed the RO/AMC to obtain additional VA treatment records and to obtain a clarifying medical opinion from the November 2008 VA examiner to include analysis and discussion of conversion standards and the October 1963 service treatment record that, as observed by the Board, seemed to reflect abnormal hearing.

Additional VA treatment notes were added to the claims file and, in November 2012, the examiner issued an addendum opinion.  The examiner again noted that the report of the Veteran's separation examination shows hearing within normal limits.  The examiner indicated having converted the in-service pure tone thresholds from ASA to ANSI units.  The examiner reported re-review of the service records and provided a medical explanation for his opinion that any current hearing loss was not likely to have resulted from in-service noise exposure.  Specifically, the examiner explained that there was no evidence of any hearing damage at time of discharge and no scientific basis for finding delayed onset hearing loss due to acoustic trauma.

Although, in the November 2008 examination report, the VA audiologist opined that the Veteran did not have hearing loss at the time of his separation from service, the absence of such is not necessarily fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the United States Court of Appeals for Veterans Claims (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley, 5 Vet. App. at 159.  

As explained below, however, this case is distinguishable from Hensley.

Post-service medical evidence clearly reflects that the Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes.  The question remains, however, as to whether there exists a medical nexus between current hearing loss disability and in-service injury or disease.

As noted, in this case, the Veteran attributes his current hearing loss to in-service noise exposure-specifically, loud aircraft noises.   The Veteran's service treatment records do not document any specific incident of acoustic trauma.  However, the Veteran is competent to assert the occurrence of in-service injury, to include in-service noise exposure.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).  As service personnel records verify that he served near aircraft and worked with ballistics, the Board finds that he was likely exposed to at least some, and possibly significant, noise exposure in service.  Thus, the Board accepts the Veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154.

However, notwithstanding the evidence of a current disability and credible assertions of in-service noise exposure, the claim must nonetheless be denied on the basis of lack of medical nexus to service.

The Veteran submitted a July 2008 statement that he experienced intermittent, short term, bouts of decreased hearing during service, and gradual hearing loss after service.  Although laypersons are competent to report on matters observed or within their personal knowledge (Layno v. Brown, 6 Vet. App. 465, 470 (1994)), as well as to report a continuity of symptomatology (Charles, 16 Vet. App. at 370), such report must be weighed against the medical and other evidence.  Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).

Here, the Veteran's current assertions-advanced in connection with a claim for monetary benefits-as to what occurred during and since service are not consistent with contemporaneous evidence.  His report of bouts of diminished hearing during service seems inconsistent with his October 1963 self report denying any ear trouble and with the September 1965 self report of medical history reflecting that a physician found no hearing trouble, and indicated that he made no report of any such trouble, despite checking a box indicating that he had experienced "ear, nose, or throat trouble."  

The Board also reiterates that, despite the Veteran's assertion as to gradually diminishing hearing since his military service, there is no documented evidence whatsoever of any actual bilateral hearing loss or even a complaint of diminished hearing until 2004-over  40 years after the Veteran's discharge from service.  The passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  . 

The Board also finds it significant that in this case, the audiologist who evaluated the Veteran in 2008 and provided the 2012 supplemental opinion considered the Veteran's assertions, but still rendered an opinion that weighs against the claim.  The audiologist found it less likely than not that the Veteran's current bilateral hearing loss is related to service.  Significantly, neither the Veteran nor his representative has presented or identified any competent , contrary evidence or opinion that, in fact, supports the claim,   The examiner based his opinion on consideration of scientific principles-noting that there is not a scientific basis for delayed onset hearing loss due to acoustic trauma-as well as pertinent facts-noting that multiple reviews of the claims file revealed normal hearing at the time of separation from service.

In this case, the Board finds the VA audiologist's opinion-to the effect that there is less likely than not a relationship between the Veteran's bilateral hearing loss and service-persuasive evidence on, and dispositive of, the medical nexus question.  See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  See also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion)).  In so finding, the Board notes that the audiologist reviewed the Veteran's claims file twice (once in 2008 and once in 2012) and completed an interview with, and evaluation of, the Veteran.  The audiologist provided a specific rationale for the opinion, showing consideration of the Veteran's history and the medical evidence of record.  Further, the rationale underlying the opinion is reasonable and consistent with the evidence of record.

As indicated above, the lack of a hearing disability in service does not preclude service connection for later-diagnosed hearing loss.  The Board  observes however,  that Hensley relies on the existence of a significant in-service upward shift in measured threshold levels from enlistment to separation.  Hensley, 5 Vet. App. at 159, 161.  According to Department of Defense Hearing Conservation Instruction, Number 6055.12 (December 2010), "significant threshold shift (STS) constitutes a change in hearing threshold relative to the initial reference audiogram of an average of 10 dB or more at 2000, 3000, and 4000 Hz, in either ear."  Here, comparison of the Veteran's entrance and separation audiometric evaluation results do not reveal any threshold shifts of 10 decibels or more.  Although the October 1963 audiometric testing results seems to reveal abnormal hearing, and the VA examiner did not specifically discuss the October 1963 record, as requested, such omission does not seriously impair the probative value of the opinion.  The October 1963 test was incomplete (measuring auditory ability at only three (3) of five (5) thresholds),, no other in-service evidence reflects any impairment of hearing, and no impaired (or significantly changed from enlistment) hearing was shown at discharge.  Thus, the October 1963 record is not considered an accurate indicator of the Veteran's in-service acuity, or any permanent shift in pure tone thresholds, given the normal results obtained at separation.  

Thus, the only competent, probative opinion on the medical nexus question weighs against the claim.  

Finally, as regards any direct assertions by the Veteran and/or his representative that the Veteran's hearing loss is medically related to his in-service noise exposure, the Board finds that such assertions, without more, provide no basis for allowance of the claim.  As indicated above, the claim under consideration turns on the medical matter of whether there exists a medical nexus between current hearing loss disability and service-a matter within the province of trained professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter on which the claim turns.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  As  the lay assertions in this regard have no probative value, the Veteran simply cannot controvert the opinion of the VA audiologist, or otherwise support his claim, on the basis of lay assertions, alone.

For all the foregoing reasons, the Board finds that the claim for service connection for bilateral hearing loss must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs